Brett Kavanaugh's Dangerous Right-Wing Judicial Activism

The D.C. Circuit Court judge poses a major threat to the high court and the country.

(AP Photo/Jacquelyn Martin)

Kavanaugh

During his tenure as judge on the D.C. Circuit Court, Brett Kavanaugh has consistently ruled in favor of corporations and against workers, consumers, civil rights, and the environment. But is there an underlying theme or approach in American jurisprudence that explains Kavanaugh’s record? Although Kavanaugh would no doubt deny it, his judicial record makes clear that he is a conservative judicial activist who would pose serious dangers to our country if he joins the Supreme Court.

Ultra-conservatives like Antonin Scalia and others have described judicial activists as possessing three primary characteristics. First, in key cases, a judicial activist judge’s decisions will correspond closely to his or her political or policy preferences. Second, in order to promote those preferences, a judicial activist will vote to overturn laws passed by democratically elected legislatures, relying on broad interpretations of the Constitution.

Finally, in pursuit of those objectives, a judicial activist judge will ignore, distort, or even overrule precedent that stands in the way. Although the concept of judicial activism was popularized by conservatives accusing liberal judges of such behavior, it’s actually right-wing judges like Kavanaugh who meet those criteria.

In fact, Kavanaugh’s record places him squarely in the mold of a conservative judicial activist according to all three criteria. He is a self-described Republican with a career of partisan advocacy on matters from the Starr report to Bush’s 2000 Florida recount to his more than five years’ work on legislative issues, judicial nominations, and other issues in the Bush White House.

Indeed, it is difficult to find a single example of a Kavanaugh opinion that has not favored right-wing policy and political positions in major cases. An independent report on his judicial record concluded that he is “an uncommonly partisan judge,” even when compared with other federal appeals court judges.

In addition, Kavanaugh has not hesitated to vote to overturn laws passed by democratically elected legislatures in order to advance his views, claiming that the laws are unconstitutional. In 2017, when he voted to strike down the Consumer Financial Protection Board (CFPB) enacted by Congress, Kavanaugh claimed it was unconstitutional because the president did not have the power to fire the CFPB head without a good reason—a constitutional claim firmly rejected by the majority of the D.C. Circuit.

Similarly, Kavanaugh relied on a broad interpretation of the Second Amendment, which even fellow Republican judges rejected, when he voted to overturn the elected D.C. Council’s ban on semi-automatic handguns in 2010. In yet another case, arguing in dissent that the Federal Communications Commission’s (FCC) net neutrality rule should be invalidated as unconstitutional, Kavanaugh relied on a First Amendment claim that even Republican FCC commissioners did not support.

When he does not strike down laws that contradict his conservative policy views, Kavanaugh sometimes resorts to trying to rewrite laws rather than applying them as written. Both his D.C. Circuit colleagues and the Supreme Court have criticized him for such actions. In a critical antitrust case, he objected to an order preventing the merger of two large health insurance companies that would have reduced competition for consumers in 14 states.

The majority criticized Kavanaugh’s dissent for trying to “appl[y] the law as he wishes it were, not as it currently is.” And when the Supreme Court reversed a Kavanaugh opinion that had invalidated a significant Environmental Protection Agency air pollution rule, the Court chided him for reading ”unwritten” requirements into the Clean Air Act and pointedly noted that “a reviewing court’s task is to apply the text” of the law as written, “not to improve upon it.” Finally, Kavanaugh’s views and record on precedent further underline his judicial activism. As an appellate court judge, he cannot vote to overrule Supreme Court precedent. But in speeches, he has clearly indicated his interest in overturning Roe v. Wade and praised Justice William Rehnquist’s dissent in that case. He has also suggested that the landmark U.S. v. Nixon case was wrongly decided and has proclaimed openly that he would like to “put the final nail in the coffin” of the decision upholding Congress’ enactment of an independent counsel law in Morrison v. Olson.

As much as an appeals court judge can, Kavanaugh has already tried to put that final nail into Morrison, asserting in one dissenting opinion that there is “nearly universal consensus” that Justice Scalia’s solo dissent in Morrison was “right” in claiming that the law was an “unconstitutional departure from historical practice.” The D.C. Circuit majority (which included another Republican appointee) vigorously disagreed and pointed out that his dissent “flies in the face” of previous Supreme Court precedent.

Kavanaugh has also attacked an important 1935 precedent on which Morrison was based: the Supreme Court’s decision in Humphrey’s Executor v. United States, which upheld congressional authority to create agencies like the Securities and Exchange Commission and the Federal Communications Commission where the president’s power to remove commissioners is limited to removal for cause. Several of his opinions have suggested that Humphrey’s Executor should be overturned, including one where Kavanaugh approvingly quoted a criticism of the ruling as “one of the more egregious opinions to be found” among all Supreme Court decisions.

Many times, Kavanaugh’s Republican and Democratic colleagues on the D.C. Circuit have criticized him for ignoring or distorting precedent. For example:

When Kavanaugh tried to uphold a random drug-testing policy for Forest Service employees, despite 14 years of maintaining a zero drug tolerance policy without such a program, the majority criticized him because he “paints with a broad brush without regard to precedent from the Supreme Court, and this court.”

In a case where the D.C. circuit majority upheld the constitutionality of the ACA, the majority pointed out that Kavanaugh’s dissent was “flawed” and “misreads” Supreme Court precedent.

In criticizing Kavanaugh’s dissent in a case concerning a challenge to the IRS, noted conservative judge Janice Rogers Brown explained that Kavanaugh’s dissent was contradicted by “binding circuit precedent.”

When Kavanaugh disagreed with a decision to let the Federal Trade Commission proceed with an important antitrust case, his colleagues noted that “in his zeal to … preempt the FTC, it is our colleague who … ignores circuit precedent.”

In a decision by Kavanaugh upholding a police search of an individual without a warrant, the dissenting judge called Kavanaugh’s opinion “an extraordinary departure from well-established Supreme Court precedent” on privacy and the Fourth Amendment. The full D.C. Circuit reconsidered and reversed Kavanaugh’s decision.

At his confirmation hearing, Kavanaugh will likely deny that he is a conservative judicial activist and will claim that he tries to be a neutral judge who calls balls and strikes like an umpire. But in a speech last year before the Heritage Foundation, he made an interesting admission. Judges should call balls and strikes like an umpire in most cases, he claimed. But “on occasion,” he stated, the “relevant constitutional or statutory provision may actually require the judge to consider policy.”

Kavanaugh has found a number of such cases on the D.C. Circuit, and in those cases, he has made his reactionary views crystal clear. All of our rights and liberties will be endangered even more if he is confirmed to the Supreme Court, where he can vote to overrule key precedents and do further damage based on his conservative judicial activist philosophy.

The high court chips away at the once impregnable wall between church and state.

About the Author

Elliot Mincberg is a senior fellow at People For the American Way Foundation. He has worked on Supreme Court nominations for more than 30 years, and is also a former House Judiciary Committee chief counsel for oversight and investigations.